Opinion
September 27, 1976
In a proceeding for leave to commence an action against the Motor Vehicle Accident Indemnification Corporation to recover damages for personal injuries (see Insurance Law, § 618), the appeal is from an order of the Supreme Court, Kings County, dated December 2, 1975, which granted the application. Order reversed, on the law, without costs or disbursements, and application denied, without prejudice to renewal upon additional facts in accordance herewith. No fact findings have been reviewed. The record discloses prima facie evidence of the identity of the hit-and-run vehicle and its owner and apparent driver; the Henderson vehicle matches the description and license plate number supplied to the investigating police officer by eyewitnesses to the accident. Although the criminal complaint against Henderson was dismissed, for lack of independent inculpatory evidence as of that date, petitioner's failure to conduct an investigation of his own, based upon the information possessed by the witnesses listed in the police report and by the detective who conducted the police investigation, compels the conclusion that petitioner has not made all reasonable efforts to ascertain the identity of the vehicle and its owner and operator, as required by section 618 (subd [a], par [5]) of the Insurance Law. Absent a renewed application based upon such further investigation, petitioner must commence a civil suit against Henderson, in which appellant may be joined as a party defendant if the facts elicited therein so warrant (see Matter of Ruiz v MVAIC, 19 A.D.2d 832; Matter of Cabral v MVAIC, 48 Misc.2d 456; cf. Matter of Thompson v MVAIC, 39 A.D.2d 508). Latham, Acting P.J., Margett, Rabin, Titone and Hawkins, JJ., concur.